Argentina: Is the employer entitled to change the employee’s working hours?

In the case “Flores Escalante, Ángel c/ Moral S.A. y otro s/Despido” the Labour Court ruled that the change of the employee´s working hours breached labour laws.

Argentine Labour Law sets forth that the employer may change the terms and conditions of the labour contract, as long as those changes are reasonable, do not alter the essential terms of the employment contract and do not cause harm or loss to the employee. If these requirements are not met, the employee may claim the reinstatement of the prior terms and conditions that were changed, under warning of considering himself constructively dismissed, and claim payment of severance compensation for dismissal for no cause provided by local labour laws. In light of the above, any single change should be duly justified and cause no harm or loss to the employee.

In this particular case, the Argentine Labour Court decided that the change of the employee’s working hours breached labour laws, since the working hours are an essential term of the employment contract and there was a change from a night shift to a day shift. The Court considered that the employee had worked in the night shift for the last 17 years (from 1997 to 2014) and therefore, the change was to his detriment.

These circumstances led the Argentine Labour Court to conclude that although, in principle, the change of working time is admissible, a modification as significant as the one executed by the employer cannot be made unilaterally by the employer. Therefore, the Court concluded that the employer should have obtained the employee’s consent.

In a nutshell, the Argentine Labour Court concluded that the employer altered the essential terms of the employment contract to the detriment of the employee, and contemplated that the employee was entitled to consider himself dismissed on a constructive basis, and claim severance compensation as provided for a dismissal without cause.

This case illustrates the best practice approach wherein employers should assess the risks of changing the working schedule on a case by case basis, considering the new time schedule, the period of time during which the employee worked on the schedule of work to be modified, and the importance of obtaining the employee’s consent to such modification.

For more information on these articles or any other issues involving labour and employment matters in Argentina, please contact Nicolás Grandi (Partner) of Allende & Brea at ng@allendebrea.com.ar or visit www.allendebrea.com.